Failing to see the forest for the trees

Ever dream you won the lottery? Or that some distant relative left you an untold fortune?

Many estate fights begin with such hopes, though perhaps planted in less imaginative soil.

Alberta’s courts have addressed such “games of chance” in two recent rulings. Each case has a lesson in the depth and colour painted onto the canvass of estate litigation matters:

Will challenges need actual evidence, and lots of it! In Beimler v. Kendall, the Alberta Court of Appeal upheld the lower court’s ruling that dismissed a challenge to the testator’s Will based on claims of undue influence and lack of mental capacity. The 83 year old testator made a new Will, cutting out his long-time spouse and adopted son. He instead gave his property to his sister. The spouse and son claimed that the sister influenced him into it and/or he was not mentally capable. The claimants’ evidence consisted of self-serving affidavits, uncorroborated by independent facts or expert medical confirmation of the testator’s state, at the time the Will was made. Medical charts with vague references that he “may have early dementia,” or was “slipping,” or suffering anxiety, are clearly not enough. Nor is merely being elderly enough to challenge that person’s Will. The Court of Appeal quite tersely dismissed the appeal of that ruling, as well.

The Will does not say just what you think! Some things are obvious, right? Most of us would agree on what the word “home” means. It is where the heart is. It is our base; our hearth and cooking. And, there is no place like it! That is exactly what the Alberta Court of Queen’s Bench also found, in Re Hicklin Estate. Well, sort of! The argument was about the meaning of an otherwise straightforward phrase: “To Transfer my home to my daughters, Deanna and Sherri, in equal shares, absolutely.” Did “home” include its contents, or just the home itself? Normally, lawyers would agree that a home is land, and that contents are a separate sort of gift: personal effects (or personal property). “House,” we might think, could include the “stuff” that makes it “home.” Each are often gifted separately. In Hicklin Estate, the testator left several notes before making his Will. The Court looked at those, and the drafting lawyer’s evidence and notes, to figure out what the testator intended. The foundational facts set the tone as well: the home and garage were of little value; making it “house,” over a lifetime, had amassed a trove of tools, scrap metal, and other valuable effects. In this case, “home,” included house and home!

Policy Point: How old is old enough to give a gift?

Yes, this seems a silly question, doesn’t it? Don’t we give our children allowances, and encourage them to share? And at Christmastime, children give lavish gifts of candy, iTunes songs and other media, and toys to their brothers and sisters.

And yet, wills and succession law in Alberta and many commonwealth jurisdictions around the world, have strict limitations against anyone under 18 making a Will to decide how to give all their worldly possessions (such as those may be!) if they should tragically pass away too young in life.

In Alberta, a legal minor must apply to the court to ask to make a Will, if they are not married or serving in the military!

While this might seem surprising, it is the law presently. The Law Commission in England, as reported in The Guardian’s article, recommends lowering the age to 16, citing several valid reasons: minors hold vast digital assets, can marry, and may have testamentary wishes (such as cryogenics) that cannot be honoured without a Will under present law. And, the article quotes the Commission’s wise warnings not to permit too informal a “wish,” (text, voicemail, etc.) to become a Will.

Lowering the age to 16, by itself, may be worth considering in Alberta. It would at least acknowledge the fact that younger people are, more often, holding valuable property, and have treasured wishes, that should be honoured and preserved.